SM AFIRAN BIBI Vs. NARIMTULLA SAHA

JUDGEMENT

(1.) This is an appeal by the plaintiff from the decision of the Subordinate Judge of Dinajpur dated 29 July 1926 which affirmed a decision of the Munsif of the same district dated 28th November 1924. The plaintiff instituted the suit for a declaration of her title to and recovery of possession of the suit lands on the allegation that on 25 Baisakh 1319 B.S. the plaintiff purchased from her mother the suit lands for a sum of Rs. 299. Plaintiff further stated that her husband Amir and pro-forma defendant 2, Aswini, are step-brothers and that Aswini mortgaged the suit properties with defendant 1 who got a decree on the mortgage bond and took possession of the disputed lands through Court and afterwards reaped the paddy grown by the plaintiff on the disputed lands in the month of Agrahayan prior to the institution of the suit. Plaintiff stated that this gives rise to the cause of action for this suit.

(2.) The defence of the defendant 1 in substance was that the plaintiff's mother had sold the suit lands to one Esum Ali and that later on Aawini, defendant 2, paid the consideration money to Esum Ali and took a reconveyance in the name of plaintiff's mother (the reconveyance was for himself and his brother Amir) and that in order to keep their title safe, Aswini had the deed of sale executed in the name of the plaintiff, and, although the plaintiff was the benamidar, the purchase was really for the benefit of himself and his step-brother Amir.

(3.) The Court of first instance held that the defence had established a case that the purchase in plaintiff's name was really for both Amir and Aswini and as in the mortgage suit which was instituted in 1916 there was decree against both Amir and Aswini and as defendant 1 purchased the disputed lands at a sale in execution of the mortgage decree, the plaintiff had no title to oust defendant 1 from the disputed lands. The Munsif accordingly dismissed the plaintiff's suit.